Labour Court Database __________________________________________________________________________________ File Number: CD90559 Case Number: AD9055 Section / Act: S13(9) Parties: EASTERN HEALTH BOARD - and - A WORKER |
Appeal by the worker against Rights Commissioner's recommendation C.W. 169/90 concerning suspension.
Recommendation:
5. The Court has considered the submissions made by the parties
in the appeal against the Rights Commissioner's Recommendation.
In the light of these submissions the Court takes the view that
the day's suspension therein recommended should be eliminated.
The Court so decides. Further the Court in the light of the above
is of the opinion that the interests of the worker concerned would
be best served by accepting the Employer's offer to resume work
but should she choose not to do so the Court is prepared to
arrange that expert advice be made available to her to discuss
with the Board the best terms on which her pension entitlements
should be made available to her.
Should she decide on this course the Court recommends that she
accept the advice given.
Division: Mr O'Connell Mr Brennan Mr Rorke
Text of Document__________________________________________________________________
CD90559 APPEAL DECISION NO. AD5590
INDUSTRIAL RELATIONS ACT, 1969
SECTION 13(9)
PARTIES: EASTERN HEALTH BOARD
and
A WORKER
SUBJECT:
1. Appeal by the worker against Rights Commissioner's
recommendation C.W. 169/90 concerning suspension.
BACKGROUND:
2. The worker concerned commenced employment in July, 1970 as a
clinical assistant/receptionist. She was appointed as a full-time
telephonist in St. Brendan's Hospital in November, 1974. Her
duties entailed doing week-end duty and normally one day over the
three - day Christmas period i.e. Christmas Eve, Christmas Day,
St. Stephen's Day in conjunction with two other operators. In
December, 1988 the worker received a memo instructing her to cover
both Christmas Day and St. Stephen's Day. This was a break by
Management of normal custom and practice. On the 19th December in
protest she wrote a letter to the administration section
explaining that she would not be available for duty on the 26th
December. She completed her duty on the Christmas Day, and the
Hospital had to release another worker from her duties to cover
the switchboard on St. Stephen's Day. The worker concerned
resumed duty on the 27th December. On the 3rd January, 1989 she
was told to report to the administrator to explain her absence on
the 26th December. She stated that she had written a letter dated
19th December explaining her situation. Management however
claimed that this letter had only been received in administration
on the 3rd January, 1989. The worker was suspended from duty
pending an investigation of the incident. She was asked by
Management subsequently to attend a meeting but refused on the
grounds that she was treated in a most unfair and discriminatory
fashion. She stated that she could never again return to her job
for fear that the same situation might occur again. She submitted
her resignation on four occasions but Management refused to accept
it. She referred the dispute to a Rights Commissioner on the 22nd
August, 1990 seeking redress to the effect that those responsible
for her situation be reprimanded and also that financial
compensation be awarded to her in respect of her lengthy service.
On the 4th September, 1990 the Rights Commissioner issued his
recommendation as follows:-
"I recommend that the Board accepts that the worker is still
an employee entitled to all rights and privileges back to 3rd
January, 1989. I recommend that the worker accepts a one day
suspension without pay for her action on the 26th December
and that the record of this is defunct as from 31st December,
1990. I further recommend that the Board (at no expense to
the worker) makes available specialist medical advice at an
independent centre appropriate to her presenting symptoms in
the expectation that she can resume her normal duties at a
location to be decided in the near future." (The worker was
named in the Rights Commissioner's Recommendation.
The worker rejected the recommendation and on the 6th October,
1990 appealed it to the Labour Court under Section 13(9) of the
Industrial Relations Act, 1969. A Court hearing was held on the
15th November, 1990.
WORKER'S ARGUMENTS:
3. 1. At the meeting with Management on the 3rd January, 1989
the worker fully explained her absence from work on 26th
December, 1988 and her letter to administration dated 19th
December, 1988. Yet she was accused by Management of
"backdating" this letter which was completely untrue. She was
arbitrarily asked to leave her place of work and was
absolutely shocked at this treatment considering her long
service and excellent record.
2. Her fellow telephonists registered strong protest at her
treatment yet they were not given an opportunity by Management
to air their views.
3. Other operators (details supplied to the Court) were
guilty of far more serious breaches of discipline without any
action being taken against them yet the worker concerned was
victimised by Management for no valid reason.
4. The worker has informed Management by letter and by
completing four signed resignation forms in January, 1989 that
she does not wish to resume duty or attend any meetings. She
did not leave her job, which she loved, of her own accord but
due to shame, humiliation and embarrassment coupled with
stress and pressure she could never return to work or even
discuss the issue with any member of the Board face to face.
5. Management did not discipline the worker who would
normally have been rostered for duty on 26th December, nor the
worker who compiled the roster placing the worker concerned on
duty on 25th and 26th December contrary to established custom
and practice.
6. The worker concerned has not receive her form P.45 even
though the Board was made aware of her resignation. She has
been ill in May and October, 1990 and the stress and tension
suffered as a result of her unjust suspension have been a
contributory factor in her illness.
7. With the suspension attached to her record after such long
service with a semi-state body she finds future prospects of
employment very bleak. She feels that the only adequate
compensation which the Board can now make would be by way of a
lump sum payment of her pension entitlements. She does not
want re-location or re-instatement.
BOARD'S ARGUMENTS:
4. 1. At the meeting of 3rd January, 1989 it was explained to
the worker that her letter of 19th December, 1988 was only
received on the 3rd January. She was put off duty pending
further consideration and investigation of the matter.
Management phoned the worker at home and requested her to
attend a meeting. She refused. She insisted that she had no
intention of resuming duty or attending any meetings. The
worker made it impossible for the Board to conclude its
consideration of the incident that occurred at Christmas 1988
by continually declining to attend meetings. She also
insisted at that time that she be given a refund of her
superannuation contributions. A worker must resign from
his/her post in order to secure a return of superannuation
contributions.
2. The worker completed a resignation form on the 2nd
February, 1990. As she continued to refuse to attend a
meeting to discuss the issue and insisted on a refund of her
superannuation contributions, her resignation form was
reluctantly accepted on 27th February, 1990. Even after her
resignation was tendered and accepted, the Board made efforts
to contact her without success.
3. The worker was not dismissed by the Board. Her employment
terminated as a result of her resignation on the 2nd February,
1990. She has insisted at all times that she does not wish to
resume duty but is seeking monetary compensation. The Board
would be anxious to assist the worker concerned in availing of
the appropriate specialist advice with regard to any
compensation and entitlements which may be due to her.
DECISION:
5. The Court has considered the submissions made by the parties
in the appeal against the Rights Commissioner's Recommendation.
In the light of these submissions the Court takes the view that
the day's suspension therein recommended should be eliminated.
The Court so decides. Further the Court in the light of the above
is of the opinion that the interests of the worker concerned would
be best served by accepting the Employer's offer to resume work
but should she choose not to do so the Court is prepared to
arrange that expert advice be made available to her to discuss
with the Board the best terms on which her pension entitlements
should be made available to her.
Should she decide on this course the Court recommends that she
accept the advice given.
~
Signed on behalf of the Labour Court
John O'Connell
________________________
4th December, 1990. Deputy Chairman
T.O'D./J.C.